LA DOBLE VENTA JUDICIAL Y EL ARTÍCULO 34 DE LA LEY HIPOTECARIA: RECEPCIÓN DE LA DOCTRINA UNIFORME SENTADA EN 2007.

Abstract

The principle of conclusive title is the cornerstone of the system of protection through registration under our country's legislation. Despite its well-known importance, the principles was not applied uniformly by the Supreme Court in the years prior to 2007, especially in the very important and oft-seen realm of procedures for forced collection through executory process leading to the judicial auction of the attached property. The trouble is double judicial sale, i.e., when a property auctioned off by the court has already been sold off by its registered holder of title or has already been auctioned off under a different forced collection procedure. And I say application has not been uniform until 2007 because it was in that year when the Supreme Court established its doctrine on the matter, in its key ruling of 5 March 2007. The ruling unifies doctrine by settling three fundamental issues. First, judicial sales of property not belonging to the debtor are valid, because the power of disposal is not a requirement valid contracts of sale must meet. Consequently, second, section 34 of the Mortgage Act upholds a non domino acquisitions, and section 34 is applicable instead of section 33 because the lack of power of disposal is a defect pertaining not to title but to delivery or possession. Third and last, the application of section 34 of the Mortgage Act does not require an intermediate transfer between the initial non dominus and the acquirer who is to be protected, because the acquirer is a third party in the unregistered transfer from which the defect in the power of disposal stems. Five years after publication, a great many authors have studied and embraced this famous ruling, and a great many other rulings have been delivered on similar cases. This paper provides a systematized compilation of all these statements of legal thought in order to determine how well the case law has become consolidated and what its outlooks of lasting into the future are.